Jacqueline Bernat v. Adam P. Hertnarski.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-735

JACQUELINE BERNAT

vs.

ADAM P. HERTNARSKI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Appellant Bernat (wife) appeals from a judgment of the

Probate and Family Court denying her complaint for modification

seeking alimony from her former husband, appellee Hertnarski

(husband). The facts and the content of the judge's decision in

the trial court are well known to the parties and will not be

repeated here except as necessary.

The parties divorced after nearly twenty years of marriage

in 2015, dividing substantial marital assets. Their separation

agreement, which was incorporated and merged with the judgment

of divorce, states that no provision for alimony will be made,

but that neither party waives claims for future alimony.
In 2019, the wife filed the complaint for modification at

issue here, seeking alimony retroactive to February 1, 2017.

The husband, who had been unemployed at the time of the divorce,

commenced new employment on that date. During the pendency of

the complaint, on November 10, 2020, the husband's new employer

fired the husband for cause for having recorded a Zoom video

call with a coworker. From the commencement of his employment

through the date of his firing, the husband's earned W-2 income

from the new employer was over $5.5 million. Although the wife

sought to attribute income to the husband for the time

subsequent to his firing, she does not seek reversal as to that

aspect of the judge's order, so that this time period, and that

amount, are all that are at issue here.

The judge ruled that

"In the present matter, the alleged change in circumstance
by Wife is that Husband began working for [the new
employer] in 2017. Husband, however, has since been
terminated from his position with [that employer] and the
parties are in the same positions they were in when they
were divorced -- both unemployed with assets from the
marital estate. . . .

"The Court does not find a material change of circumstances
has occurred since the parties' divorce."

The judge then went on to conclude that "alimony would not

be appropriate even if there was a material change in

circumstances." The judge concluded that "both parties have had

a diminished lifestyle following their divorce. Each party has

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had to significantly cut back on his or her weekly expenses and

approach his or her spending with foresight on how it would

affect the remaining assets." The judge noted that each party

had made sacrifices in order to decrease their spending, but

"[the wife] has grown dissatisfied by it. She desires to re-

immerse herself in the lavish lifestyle of frequent travel,

purchasing art and expensive wine, and to own several properties

in excess of four thousand square feet."

The judge also noted that the wife had increased her

spending after learning that the husband had begun his new job

and had purchased real estate on Cape Cod by taking a second

variable interest rate loan. He also noted that she has

purchased a co-op apartment in New York City for her son, which

has been vacant since 2019.1

The judge found that, "[i]n light of her own substantial

assets, . . . the Wife does not have a present need for

alimony." He also concluded that because assets divided in the

judgment could not form the basis of alimony, "the former

Husband does not have the ability to pay. The Court

specifically also finds that the wife has the ability to meet

her current needs based upon her own assets."

1 The judge also discussed the impropriety of attributing
income to the husband for the period following his termination,
something not at issue here, see supra at 2.

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Although we recognize that, as litigated in the trial

court, the case focused a great deal on alimony going forward

into the future despite the husband losing the new job, we

conclude that the judge erred in finding no material change of

circumstances. To be sure, at the time of trial, both parties

were unemployed. But, during the period of his employment after

the divorce, the husband had substantial earned income. The

husband obtaining the employment that generated that income was

a material change in circumstances.

As to his ability to pay, at least during the years 2017 to

2020, and without reference to income from marital assets, the

husband had an ability to pay at least some amount of alimony.

This leaves before us the question of the wife's need. As

to the wife's need, as the judge noted, it is defined under our

law, "in terms of the marital lifestyle the parties enjoyed

during the marriage, as established by the judge at the time of

the order being issued." Young v. Young, 478 Mass. 1, 7 (2017).

The judge's finding that, given the divorce, neither party could

sustain the lifestyle they enjoyed during the marriage thus

necessarily means that the wife had need for alimony within the

meaning of the case law.

Of course, where, as the judge found here,

"the couple's collective income is inadequate to allow both
spouses to maintain the lifestyle they enjoyed during the
marriage after their household is divided in two through

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divorce, the recipient spouse does not have an absolute
right to live a lifestyle to which he or she has been
accustomed in a marriage to the detriment of the provider
spouse"

(quotations and citations omitted). Id. Rather, "[t]he judge

must consider all the statutory factors and reach a fair balance

of sacrifice between the former spouses when financial resources

are inadequate to maintain the marital standard of living."

Pierce v. Pierce, 455 Mass. 286, 296 (2009). "The Act

presumptively provides that the 'fair balance of sacrifice'

means that the supporting spouse generally should not be

required to pay more than thirty-five per cent of the difference

between the parties' gross incomes." Young, supra, citing G. L.

c. 208, § 53 (b).

Because there was a material change in circumstances, the

wife had need, the husband the ability to pay, and in no event

were the parties going to be able to afford to maintain the

marital standard of living, that is the assessment that the

judge should have undertaken here.2

Finally, the wife asserts that her motion for counsel fees,

sanctions, and costs, filed in November 2022, was implicitly

denied by the court. Accepting that characterization, we see no

abuse of discretion or other error of law in that denial.

2 The husband's request for appellate attorney's fees is
denied.

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We therefore vacate the judgment and remand the case to the

Probate and Family Court for review of the complaint for

modification with respect to the period that the husband was

working in the new job under that standard. We express no

opinion on the proper outcome of that proceeding or on any other

legal questions that will have to be addressed in order to

properly rule on the complaint for modification, including

whether any alimony should run from the date of the complaint

for modification or be retroactive to the date of the husband's

employment.

Conclusion. The judgment dated April 2, 2024, is vacated,

and the case is remanded for further proceedings consistent with

this memorandum and order.

So ordered.

By the Court (Rubin, Neyman &
Tan, JJ.3),

Clerk

Entered: August 20, 2025.

3 The panelists are listed in order of seniority.

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